Into Reverse Gear
The recent Hague Court of Appeal judgment, in the appeal brought by Shell against the first instance decision in favour of the NGO Milieudefensie, held that Shell is legally obliged to reduce its scope 3 emissions, but did not order Shell to reduce them by 45%, or indeed any percentage. The judgment is likely to have a significant impact on climate change litigation against corporations beyond just the Netherlands. That impact will be all the greater if the losing parties, Milieudefensie and others, do not appeal.
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The Meaning of Carbon Budget within a Wide Margin of Appreciation
Although the KlimaSeniorinnen judgment discusses a number of rights of the European Convention on Human Rights (ECHR), including Article 6 (right of access to a court), Article 2 (right to life), and Article 13 (right to an effective remedy), the focus of this blog post is on its discussion of Article 8 (right to private, home and family life). The question raised by that discussion is whether the judgment is one that will “frighten the horses” and lead to oppositional cries of judicial overreach around the separation of powers, or if it is more an unexceptional case of “move on, nothing to see here.” My argument is that the judgment is mostly the latter but that it has what, in computer gaming terms, is known as an “Easter egg” – a hidden element included by the developers to surprise and reward those who look carefully. That could turn out to be more controversial.
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The Silent Victim of Israel’s War on Gaza
In March 2024, Forensic Architecture reported that more than 2,000 agricultural sites, including farms and greenhouses, have been destroyed in Gaza since October 2023. Almost six months into Israel’s war on Gaza, evidence indicates the devastating impacts of the war on the natural environment in Gaza. In particular, it has been reported that farms have been devastated, and nearly half of the trees in Gaza were razed. While this raises numerous issues, the question of whether Israel’s large-scale airstrikes on Gaza would make a substantial contribution to serious violations of international humanitarian law (IHL) protecting the natural environment during armed conflicts, deserves more thought than it gets.
Continue reading >>A Constitution without Constitutionalism
“Digital constitutionalism” has attracted a good deal of scholarly attention in recent years, much of it enthusiastic, some more sceptical. Just what constitutionalism means, and how this meaning can be transposed into a realm of private ― albeit increasingly regulated ― interactions rather than traditional public law, is part of the debate between the enthusiasts and the sceptics. All agree, however, that it is a normatively charged idea, a shorthand reference to certain values which include ― whether or not they are limited to ― respect for certain human rights. In this post, I argue that while we can indeed think of internet regulation in constitutional terms, we must first understand what I shall call the constitution of cyberspace. A descriptive effort must precede any normative projects directed at imposing values allegedly inherent in the notion of constitutionalism onto cyberspace. And further, understanding the constitution of cyberspace should at least make us wary of digital constitutionalism’s normative ambitions.
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Consensus and the Crown
The late Queen was loved by many of those who felt no allegiance to her, and respected by many who did not love her. By contrast, prior to his accession, the new King had struggled to be respected, let alone loved. Will his Canadian subjects maintain their allegiance to him? The question, however inevitable, is largely idle in light of the political difficulties that any attempt to secure constitutional change in Canada has encountered for 30 years. The monarchy will remain, by default if not by desire, just as King Charles III rather than his more popular son succeeded regardless of his subjects’ feelings on the matter.
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More and Better
Tarunabh Khaitan’s editorial comment in ICON on the perils of letting activist inclinations influence one’s scholarship, resulting in an unsavoury “scholactivism” blend, is thought-provoking. Professor Khaitan calls for rigorous adherence to the ethical demands of a search for truth in our research, even as we might, he suggests, become or remain activists for causes we believe in a range of other activities. In my view, however, Professor Khaitan’s critique misses the mark. He is asking too much of individuals and not enough of institutions.
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